Queen v. Gastan

• Decision Date: 20 December 1965
• Citation: 215 N.E.2d 408,5 Ohio App.2d 278
• Parties: , 34 O.O.2d 439 QUEEN et al., Appellees, v. GASTAN et al., Appellees; Hunusova et al., Appellants.
• Court: Ohio Court of Appeals

Page 278

5 Ohio App.2d 278

215 N.E.2d 408, 34 O.O.2d 439

QUEEN et al., Appellees, v. GASTAN et al., Appellees; Hunusova et al., Appellants.

Court of Appeals of Ohio, First District, Hamilton County.

Dec. 20, 1965.

Hoover, Beall & Eichel, Cincinnati, for plaintiff-appellees.

Robert T. Keeler, James R. Bridgeland and Taft, Stettinius & Hollister, Cincinnati, for appellants.

Norbert A. Michalski, Pittsburgh, Pa., and Lindhorst & Dreidame, Cincinnati, for appellee Helen Gaston.

HOVER, Judge.

This is an appeal on questions of law from a judgment of the Probate Court of Hamilton County construing the last will and testament of Veronika Huncik, a resident thereof, and directing the payment of the residue of the estate to certain contingent domestic legatees rather than to primary legatees resident in Czechoslovakia.

The matter was considered on the transcript of the docket and journal entries of the court below, a bill of exceptions, and the briefs and arguments of counsel.

There is only one question involved. It concerns the proper construction of Item VI of such will, which is as follows:

'Item VI. All the rest, residue and remainder of my estate I give, devise and bequeath as follows:

'A. One fourth (1/4) to my brother, Joseph Milhalus, or his lineal descendents.

'B. One fourth (1/4) to my brother, Vincent Milhalus, or his lineal descendants.

'C. One fourth (1/4) to my sister, Josephine Mishik, or her lineal descendents.

'D. One eighth (1/8) to my nephew, Frank Milhalus, or his lineal descendents.

'E. One eighth (1/8) to my niece, Mary Beyer, or her lineal descendents.

'All of the legatees mentioned in this Item are now residents of Czecho-Slovakia and if, at the time of my death or within one year thereafter, the legacies can not, for any reson, be delivered to any or all of said legatees then such legacy or legacies that can not be delivered I give, devise and bequeath to my two nephews, Joseph Gastan and Stefan Gastan and Vincent Puskar, husband of my niece, equally, share and share alike. In such event it is my desire that they be ever mindful of aiding any of my relatives who do not benefit under this will.'

The court is particularly concerned with that portion of Item VI above which disposes of the residue of the estate by giving it to two nephews and a niece, resident in the United States, as contingent beneficiaries in the event the legacies bequeathed to named residents of Czechoslovakia or their lineal descendants cannot 'at the time of my death or within one year thereafter, * * * for any reason, be delivered to any or all of said legatees.'

The will was dated July 31, 1957. Testator died December 4, 1957. Consequently, the one-year time limit provided by the will for delivery would terminate December 4, 1958.

In construing the will the court was called upon to determine and give effect to the real intention of the testator, thus requiring a finding of whether an effective delivery of the legacies could be made to the benefit of the foreign heirs not later than December 4, 1958.

It was contended on behalf of the foreign legatees that a physical delivery could be made without difficulty. It was also contended that Item VI was so worded to avoid any possible transfer to an Alien Property Custodian and that, since no such official existed, either when the will was drawn or in 1958, or now, there would be no further intended limitation on the delivery over to the foreign legatees. On the other hand, it was contended by the domestic legatees that the factual conditions existing at the time in Czechoslovakia and Czechoslovakian laws applicable to the ownership of property, especially sums which were comparatively large, were such that the legatees would not be in a position to fully enjoy or derive substantial benefit from their inheritances. Testimony received by the court on behalf of both contending parties is lengthy, at times confusing, and totally contradictory; the foreign legatees claiming that delivery of the money could be made in the normal course of business and that a large portion of it, to wit, forty per cent, could be paid over in Tuzex certificates which, in turn, would be convertible to so-called Tuzex kronen in Czechoslovakia. This is a special from of currency not in general circulation, and spendable only in certain state-owned and-operated stores for the purchase of items catalogued by those stores. It was claimed on the other hand, and evidence was presented in support of the claim, that there was an ill-defined but definite limit to the amount of money or property which could be safely or lawfully possessed by persons in the subject country and that the legatees could not receive the full or substantial benefit of the legacy because of the totally controlled economy and, further, because of the control exerted over individuals in the country by the sole political party in existence there.

The possibility of such a situation is recognized and provided for by so-called 'Iron Curtain Statutes' of numerous states, such as Sections 2113.81 and 2113.82 of the Revised Code of Ohio. The statute is not controlling of this case, but it is suggestive of the problem presented and is certainly expressive of the general policy of the state of Ohio in regard to certain foreign bequests. There seems to be no doubt upon the...